Live Nation v Aviva, 2023 ONSC 2284.
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By: Weston McArthur
Live Nation Ontario Concerts GP Inc. (hereinafter, “Live Nation”) hosts concerts in Ontario. Live Nation contracted Northwest Protection Services LTD (hereinafter, “NPS”) to provide security for the event for a concert that was scheduled for September 1, 2016. Live Nation’s commercial liability insurer was Starr Indemnity and Liability Company (hereinafter, “Starr”), and NPS’s commercial liability insurer was Aviva Insurance Co. of Canada (hereinafter, “Aviva”).
At the concert on September 1, 2016, NPS security staff removed a concertgoer. During this, NPS security staff allegedly hit and injured another person attending the concert. This person brought a civil action against Live Nation.
In this application, Live Nation sought a ruling that NPS’s liability insurer had a duty to defend and indemnify the claim advanced in full. Aviva argued that equitable contribution applied, which refers to when defence costs are split between two insurers. Writing for the Ontario Superior Court of Justice, Justice Koehnen granted Live Nation’s application.
The contract between Live Nation and NPS required the latter to have commercial general liability insurance. NPS met this requirement through the policy it held with Aviva. As required per the contract between the Live Nation and NP, Live Nation was considered an additional insured under the terms of the Aviva policy. At paragraph 9, Justice Koehnen explained that “(t)he policy naming Live Nation as an additional insured (had to) cover Live Nation on a primary basis regardless of any other insurance.”
Aviva argued that because its policy and Live Nation’s policy both had provisions declaring each respective policy excess to other policies of insurance, that defence costs should be split between the two insurers. The Aviva policy made clear, however, that the Aviva policy could only be considered excess insurance where “[NPS] has been added as an additional insured [under] another policy” (i.e., the Starr policy). NPS had not been added to Live Nation’s policy.
Justice Koehnen found that it would be inconsistent “with the commercial concept of adding parties as additional insureds” to find that equitable contribution applied in this case. The result was that Aviva had a duty to defend.